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HomeMy WebLinkAbout2005-0680.Richards.05-12-19 Decision Crown Employees Commission de Nj Grievance Settlement reglement des griefs Board des employes de la Couronne ~ Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2005-0680 Umon# 05-21 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CanadIan Umon of PublIc Employees - Local 1750 (Richards) Union - and - The Crown III RIght of Ontano (Workplace Safety and Insurance Board) Employer BEFORE Owen V Gray Vice-Chair FOR THE UNION Ian Thompson NatIonal RepresentatIve CanadIan Umon of PublIc Employees FOR THE EMPLOYER GurJIt Brar Counsel Workplace Safety and Insurance Board HEARING December 14 2005 2 DeCISIon [1] On January 11, 2005 the employer ("the WSIB") termmated KIrsten RIchards' employment "m accordance wIth ArtIcle 1305 of the CollectIve Agreement," because m Its VIew she had not provIded a JustIfiable reason for her absence from work from and after December 13, 2004 ArtIcle 13 05 of the CollectIve agreement provIdes ARTICLE 1'3 DISCIPLINE AND DISCHARGE 1'3 05 When an employee IS absent m excess of ten (10) consecutIve workmg days they may be dIscharged for not provIdmg a JustIfiable reason or for not notIfymg the employer unless gIVmg such notIce was not reasonably possIble The pertment facts are not substantIally m dIspute [2] In October 2004 the gnevor formally requested that her remammg vacatIOn entItlement be combmed wIth unpaid leave to permIt an absence from work for a SIX week penod endmg December 10, 2005 She told her manager, ElIzabeth Falby, that she would be gomg to England durmg that tIme Ms Falby granted her request The combmed vacatIOn and leave commenced October 28, 2004 [3] Ms Falby had been due to retIre, and m mId November 2004 Ms Joanne DOIron replaced Ms Falby as manager of the payment processmg umt m whIch the gnevor was employed. On December 13, 2005, Ms DOIron receIved a telephone call from the gnevor's mother She saId that her daughter would not be m to work, was stIll m England, and wanted an extensIOn of her leave She also said that she would be sendmg Ms DOIron a letter later that week. She gave Ms DOIron her daughter's cell phone number, and asked Ms DOIron If she wIshed to speak wIth her daughter dIrectly Ms DOIron saId that she would [4] That afternoon Ms DOIron receIved a telephone call from the gnevor The gnevor told her that she wanted to extend her leave untIl early Apnl because she was suffermg from stress Ms DOIron asked about the letter that her mother had said would be sent later that week. The gnevor saId It was a letter from her famIly doctor 3 concernIng the stress Ms DOIron told the gnevor that she would get back to her after she receIved the letter [5] The followmg letter arnved by fax m late afternoon on December 14th and came to Ms DOIron's attentIOn the followmg mornIng December 1'3 2004 To Joanne DOIron Re KIrsten RIchards As you know KIrsten has been experIencmg anxIety and depressIOn secondary to work related stress for the last two and a half years She has been on an extended hohday for the last five weeks and stIll feels very anxIOUS about a return to work because of the ongomg sItuatIOn at work. She IS requestmg an extended leave of absence for mechcal reasons Smcerely Janet KrulewItz M.D C C F P F C F.P [6] Ms Donon had no knowledge of the thmgs said m the first sentence of the doctor's letter At some pomt before or after recelvmg thIS letter she telephoned Ms Falby and asked whether the gnevor had ever complamed about stress at work. Ms Falby told her that the gnevor had not used that word, that she had spoken of bemg depressed, wakmg up sad m the mornIng and not knowmg what to do, but that she had seemed happy workmg m the payments department. Ms DOIron spoke to her superIOr, who told her that If the gnevor claimed to be suffermg from work related stress they should get the mformatIOn necessary to complete a Form 7 Form 7 IS a report that the WSIB reqUIres from employers (mcludmg Itself) concernIng an alleged workplace related mJury or dIsease that results m an employee's bemg absent from work and/or recelvmg health care [7] Ms DOIron called the gnevor's cell phone number on December 16, 2004 and left a message The gnevor returned the call later that same day Ms DOIron told her that If her request for tIme off was due to work related stress, a Form 7 would have to be submItted She asked the gnevor to explam the sItuatIOn. The gnevor told her that her stress had ongmated a couple of years earlIer m dealmgs wIth her manager m a prevIOUS posItIOn m another department, and that the details should all be m her file [8] In hIS openIng statement, employer counsel stated that the conversatIOn of December 16th had concluded wIth Ms DOIron saymg that they would have to complete 4 the Form 7 and askmg If they could contact the gnevor at her cell phone number If they had any further questIOns Ms DOIron dId not address that pomt m the testImony she gave durmg the employer's case m chIef. The gnevor testIfied that Ms DOIron had saId she would take the form to Pat Johnson and would call her back to let her know If they needed any more mformatIOn or anythmg else That dId not contradIct anythmg m Ms DOIron's testImony Ms DOIron was not called m reply to contradIct It [9] In her cross exammatIOn Ms DOIron acknowledged that durmg the conversatIOn of December 16th she dId not tell the gnevor that her doctor's letter was msufficlent or unacceptable or ask for addItIonal medIcal mformatIOn. She dId not tell the gnevor to return to work. There IS no suggestIOn that she told the gnevor that she was consIdered absent wIthout leave and m Jeopardy of termmatIOn. [10] The partIes agree that on or about December 20, 2004 the followmg letter was sent by "regIstered mail" addressed to the gnevor at her home address m Scarborough, OntarIO Dear KIrsten You were to have returned to work on December 1'3 2004 from your vacatIon and leave of absence whIch commenced on October 28 2004. You have not returned to work as expected and are therefore absent from work wIthout authOrIZatIOn. As I understand It m September 2004 you requested a one-year unpaId leave of absence from your Manager WBS ElIzabeth Falby The reason you provIded for your request was that you wanted tIme off to 'figure out what to do' I understand that you at no tIme mchcated to your manager that your request was related to work related stress Your manager denIed your request for the extended leave of absence and, m Its place approved 2 weeks of vacatIOn followed by 4 weeks of unpaId leave of absence untIl December 1'3 2004. On December 1'3 2004, a person belIeved to be your mother contacted Joanne DOIron, Manager WBS to advIse her that you would not be commg m to work as you were stIll m England and that she would be provIchng a letter to Joanne on Wednesday December 15 2004. The letter that was faxed to Joanne on December 15 2004 was from the Flemmgdon Health Centre dated December 1'3 2004 whIch stated that you had been experIencmg anxIety and depressIOn secondary to work related stress for the last two and a half years and that you were requestmg an extended leave of absence for mechcal reasons KIrsten thIs was the first tIme that management was made aware that you may be suffermg from work related stress For your mformatIOn we have completed and submItted an Employer's Report of InJury or Form 7 as we [SIc] well as the December 1'3 2004 note from the Flemmgdon Health Centre for the purpose of reportmg a possIble claIm for a work related mJury or chsease As an employer the WSIB IS reqUIred to report all accIdents under the Workplace Safety and Insurance Act. I have revIewed the note submItted from the Flemmgdon Health Centre wIth representatIves from the Human Resources DIvIsIOn and I have concluded that It 5 does not provIde sufficIent obJectIve mechcal eVIdence to support your contmued absence from work. In order for the WSIB to authorIze your absence from work, you are reqUIred to provIde obJectIve mechcal eVIdence supportmg your mabIhty to return to work by no later than December '31 2004. ThIs should mclude detaIls about your mechcal conchtIOn, functIOnal abIhtIes and dates of VIsIts/treatment Once obtamed, thIS mformatIOn can be provIded to the Corporate Health Center (15th floor 200 Front Street West Toronto OntarIo M5V '3Jl) In the absence of such eVIdence you are expected to return to work by December '31 2004. Should you faIl to provIde satIsfactory mechcal eVIdence or return to work by December '31 2004 you wIll be deemed to have abandoned your posItIon WIth the WSIB and your employment wIll be termmated m Accordance wIth ArtIcle 1'3 05 of the CollectIve Agreement. Yours truly Pat Johnson AssIstant DIrector Quahty Improvement Branch [11] The partIes agree that the followmg letter was sent on or about January 4, 2005 by "regIstered mall" addressed to the gnevor at her home address m Scarborough, OntarIO Dear KIrsten You were sent a regIstered letter dated December 20 2004 regardmg your return to work. A copy of whIch IS attached for your reference To date we have not had any response from you. VvT e are provIdmg you wIth another opportumty to respond by January 11 2005 FaIlure to do so wIll result m the termmatIOn of you employment effectIve January 11 2005 Yours truly Pat Johnson AssIstant DIrector Quahty Improvement Branch [12] The partIes agree that the followmg letter was sent on or about January 11, 2005 by regular mall addressed to the gnevor at her home address m Scarborough, OntarIO Dear KIrsten You were to have returned to work on December 1'3 2004 from your vacatIOn and leave of absence whIch commenced on October 28 2004. As you chd not return to work as expected, you have been absent from work wIthout authOrIZatIOn smce December 1'3 2004. On December 20 2004, a regIstered letter was sent to your home address that provIded you untIl December '31 2004 to eIther provIde sufficIent obJectIve mechcal eVIdence to support your contmued absence from work or report to work by December '31 2004. As we had not heard from you by December '31 2004, you were sent a subsequent letter dated January 4, 2005 where you were provIded another opportumty to respond by January 11 2005 As mchcated m our letter to you of December 20 2004 and January 4, 2005 faIlure to respond would result m the termmatIOn of your employment ThIs IS to advIse you that we stIll have not heard back from you and you have not provIded any obJectIve mechcal eVIdence to support your contmued absence from 6 work. As a result the WSIB has decIded to termmate your employment m accordance wIth ArtIcle 1'3 05 of the CollectIve Agreement as you have not provIded a JustIfiable reason for your absence from work. Yours truly Pat Johnson AssIstant DIrector Quahty Improvement Branch [13] The partIes agree that the gnevor dId not receIve any of the employer's letters untIl she returned to Toronto on January 31, 2005 She then found notIces of the attempted delIvery of two "regIstered" letters from unspecIfied senders, copIes of those letters that had been sent by regular mall at some pomt, and the letter of January 11, 2005 The gnevor testIfied that she was unaware pnor to January 31, 2005 of these attempts by her employer to contact her by mall, and that her mother had not told her about them durmg telephone conversatIOns pnor to her return. That testImony was not challenged [14] Ms DOIron testIfied that she dId not attempt to contact the gnevor by telephone after December 16th. She belIeved that she had told Ms Johnson that the gnevor was m England and could be reached by cell phone She dId not have a hand m draftmg the letter of December 20th or the subsequent letters There IS no eVIdence that anyone on behalf of the employer tned to contact the gnevor after December 16th at the cell phone number that It had for her [15] Ms DOIron receIved a telephone call from the gnevor on February 9, 2005 The gnevor told her that the umon had advIsed her to call and ask for her Job back. Ms DOIron replIed that they would be dlscussmg thIS wIth the umon, from whom they had already heard Ms DOIron later advIsed the umon that the decIsIOn to termmate had been made that they would not be reversmg It [16] Durmg her testImony-m chIef, Ms DOIron was asked whether the gnevor's absence after December 13th had had an Impact m her area. She testIfied that Chnstmas tIme was a busy tIme m her department, that there had been SIX workers m her department, mcludmg the gnevor, and that four of the SIX had been allowed to take holIdays between Chnstmas and New Year's day based on the gnevor's bemg back durmg that tIme She had had to seek the assIstance of other payment umts m the bUIldmg and m regIOnal offices to help cover the work durmg that perIOd, and even then her umt had fallen short of theIr performance standard (91% mstead of 95%) for the 7 month of December She also testIfied that as a result of the gnevor's termmatIOn a new tramee had been hIred m March 2005 and that smce It takes a year for a payment specialIst to become fully tramed, as the gnevor had been, they were stIll feelmg the Impact [17] The gnevor IS m her late twentIes She began workmg for the WSIB m Apnl 1999 She was employed m claIms regIstratIOn from January 2001 untIl September 2003, when she became a payment specialIst m Ms Falby's payment processmg department The employer called Ms Falby and Claudia Krywulsky, the gnevor's former manager m claIms regIstratIOn, to testIfy that the gnevor had never told them that she was suffermg from "work related stress" Ms Krywulsky was cross exammed about her counsellmg and dlsclplme of the gnevor and certam gnevances m response, mcludmg one allegmg harassment, but was unwIllIng to charactenze her relatIOnshIp wIth the gnevor as fraught wIth conflIct. [18] Ms Falby saId that after the gnevor first spoke to her m June 2004 about an extended vacatIOn she had confided that she woke up unhappy From the ensumg dIscussIOn Ms Falby concluded that the gnevor was confused about what she wanted to do The gnevor dId not seem unhappy wIth Ms Falby or her posItIOn m payments or the payments team. She spoke to Ms Falby ofbemg dIsIllusIOned wIth people, of feelmg that people were not honest. She mentIOned, wIthout gIvmg detmls, an occaSIOn when she dIscovered that someone she consIdered a close fnend was not a fnend, that thmgs were not as she expected them to be She was sad Ms Falby suggested that she consIder seemg a doctor or makmg use of the Employee AssIstance Program. In that connectIOn the gnevor spoke of her mother's concern that she mIght be labelled If she was prescribed antIdepressants In the context of these dIscussIOns the gnevor had asked whether It would be possible to get a year's leave wIthout pay No formal request was submItted Ms Falby enqUIred and was told that a one year leave would not be approved, but that she could approve combmed vacatIOn and leave of SIX weeks If she felt she could manage wIthout the gnevor for that length of tIme She told the gnevor that a one"year leave would lIkely not be approved, and they settled on the sIx"week absence 8 [19] Ms Johnson dId not testIfy, nor dId anyone else mvolved m the decIsIOns to send the letters of December 20th and thereafter to the gnevor's Toronto address or the decIsIOn to termmate the gnevor's employment when they receIved no response to those letters [20] The gnevor testIfied that she was shocked when she read the termmatIOn letter Smce December 16th she had assumed that her request for a "stress leave" was bemg processed and that someone would contact her If there was any dIfficulty She called a shop steward she knew, who referred her to the shop steward for her work area, who referred her to a UnIon representatIve The UnIon representatIve advIsed her to contact Ms DOIron and ask for her Job back. She dId that on February 9, 2005 [21] The gnevor testIfied that she had found her Job m claIms regIstratIOn stressful because she was "harassed" about her "stats" She was constantly gomg to meetmgs at whIch she was told there were problems wIth her work and recelvmg letters that she would be suspended or termmated If she dId not meet the standards She smd that although she got along well wIth Ms Falby she had never really got over thIS stress from her prevIOUS posItIOn, that she dally felt stress, that she expenenced emotIOns and dId not know how to handle It, dId not know what to do She saId she dIscussed thIS wIth Ms Falby In her testImony she described the one-year leave she had asked about as a "stress leave" It IS not clear whether she clmms to have described It precIsely that way to Ms Falby [22] Regardmg the request she made to Ms DOIron on December 13th, the gnevor testIfied that as her date of return to work approached she had felt mcreasmgly anxIOUS By about December 9th she felt she needed more tIme, and called her doctor on December 9 and 10 to talk to her about extendmg her absence due to stress Her doctor saId she would wnte a letter for her and her mother could pIck It up She dId not call Ms DOIron untIl she was sure that there would be a letter from the doctor She had her mother call Ms DOIron mltIally because she was nervous, dId not want a confrontatIOn and thought It would be okay If her mother called She gave that explanatIOn when Ms DOIron asked about It on December 13th. She saId Ms DOIron had seemed unsure why she was not back at work, unsure about the stress At the end of that conversatIOn Ms DOIron saId she would get back to her when she got the doctor's letter 9 [23] Accordmg to the gnevor's account of the telephone conversatIOn of December 16th, Ms DOIron told her that she had talked to Pat Johnson, that they had to put m a Form 7 because they realIzed that It was a stress related sItuatIOn and they needed detaIls of the stress to properly fill out the form. She told Ms DOIron that she had been dealmg wIth stress that started m claims regIstratIOn and had not got over It and was requestmg a stress leave She saId that she had told Ms Falby about the stress and that Ms Falby had suggested that she take the sIx.week vacatIOn plus leave and then decIde whether she could deal wIth the stress when she came back. She had decIded that she could not deal wIth the stress and was requestmg a further leave Ms DOIron saId she would take the form to Pat and would call back to let her know If they needed any more mformatIOn or anythmg else [24] The partIes met to dIscuss thIS gnevance on Apnl 29, 2005 The senIor employer representatIve at that meetmg later wrote to the gnevor on May 18, 2005 That letter recItes I asked you why the first contact wIth your manager occurred on the day that you were supposed to be back to work. You mchcated that you were waItmg for your doctor to provIde the mechcal note You also confirmed that you chd not see your doctor for thIs note and that you Just spoke to hIm. I asked If you were workmg m England as a temporary help agency had called for a reference You mchcated that your funds ran low durmg your stay m England, however you chd not work there because you stayed wIth frIends mstead. I note that the matter of workmg m England was addressed m eVIdence The gnevor testIfied that at one pomt she ran out of money and sought temporary employment but dId not ever get a temporary posItIOn. [25] The letter goes on to record the explanatIOn gIven by the gnevor You acknowledged that notIces to pIck up regIstered letters had been sent to your home address but that your mother dIdn't pIck them up You also acknowledged that an envelope was sent regular maIl, but your mother chd not open It. On January 11 2005 your employment was termmated and on January '31 2005 you returned to the Country You mchcated that the CIrcumstances were regrettable and that you had understood from your conversatIOn wIth your current manager Joanne DOIron, that you would be waItmg for a response from her Any mISCOmmUnICatIOn was not mtentIOnal on your part and you apologIzed If thmgs were mIsunderstood. You mchcated that you were not clear on what you needed to do and dIdn't expect to be termmated. You mchcated that you feel capable and ready to come back to work. 10 I should perhaps note that there IS no eVIdence that the gnevor's mother could have pIcked up regIstered letters addressed to her daughter [26] After recltmg the events of December 13 through 16, 2004, the letter of May 18, 2005 describes the employer's reasons for denymg the gnevance The mechcal note was provIded to Corporate Health and they confirmed that It was not sufficIent to support an absence due to work related stress As the mechcal eVIdence provIded to management chd not support your contmued absence from work you were therefore on an unauthonzed leave of absence Your manager notes that when you spoke wIth her on December 1'3 and December 16 2004, the conversatIOn was muddled and your responses were bnef. As you chd not contact your manager after December 16 2004, she sent you a regIstered letter dated December 20 2004 where you were advIsed that you needed to provIde detaIls about your mechcal conchtIOn and m the absence of such eVIdence you were expected to return to work by December '31 2004. When you faIled to provIde the mformatIOn and chd not report to work, you were sent a second letter gIVmg you an extensIOn of one week to reply \Vhen you chd not respond, your employment was termmated on January 11 2005 KIrsten you had a responsIbIhty to provIde a satIsfactory reason for your absence from work. You chd not provIde obJectIve eVIdence to support your prolonged absence You were not forthcommg wIth any mformatIOn when you spoke wIth your manager on December 1 '3th and 16th other than to mchcate that you had requested more tIme off due to work related stress and that our records would provIde all the mformatIOn management reqUIred. The collectIve agreement mchcates that when an employee IS absent m excess of 10 consecutIve workmg days they may be chscharged for not provIdmg a JustIfiable reason. You had an obhgatIOn to provIde that JustIficatIOn and when you faIled to do that your employment was termmated. In conclusIOn your request for remstatement IS demed. The author of thIS letter dId not testIfy It and the earlIer letters are the only eVIdence before me of the employer's reasons for termmatmg the gnevor's employment and denymg her gnevance [27] For completeness I should note one other matter that arose durmg the hearmg [28] Durmg hIS openIng statement the unIon's representatIve stated that the gnevor lost her mrplane tIcket whIle she was m England and had had to borrow money to get a tIcket home Asked durmg her exammatIOn m chIef why January 31st was the date she returned home, the gnevor saId that "by the tIme I got a tIcket the date was for January 31st." Durmg cross exammatIOn about her reason for not returnIng to work December 13th, she replIed m the affirmatIve when employer counsel asked "It'S not because you cannot get on a plane and return to work, It'S because you feel stress?" He 11 followed wIth "you could have got on a plane but you were stressed about gomg back to work?" She replIed "okay" Later, durmg argument about an obJectIOn to questIOns he had asked about the gnevor's harassment gnevance m 2003, employer counsel conceded that he was not challengmg that the gnevor had subJectIvely felt as she claImed she dId on December 13th and 16th. [29] In answer to a questIOn that I asked for clanficatIOn at the end of her cross exammatIOn, the gnevor saId that she had lost her aIrplane tIcket around the begmnmg of December, that she dId not have the money to replace It untIl mId January and that by then the earlIest "cheap" tIcket avaIlable was for January 31, 2005 Employer counsel was gIven the opportunIty to cross examme on these answers After havmg her confirm that the tIcket loss had been before her call to Ms DOIron, he put It to her that she dId not tell Ms DOIron that she had lost her tIcket. She agreed that she had not Employer counsel dId not challenge the veracIty of her claim that she had lost her tIcket He dId not suggest to her that thIS had been the real reason for her decIsIOn not to return to work as scheduled, nor dId he otherwIse resIle from hIS earlIer conceSSIOn that he was not challengmg that the gnevor had subJectIvely felt as she claImed she dId on December 13th and 16th. [30] In argument, employer counsel took the posItIOn that the employer had taken m ItS letter of May 18, 2005 The gnevor was only authonzed to be absent untIl December 10th. No one ever authonzed an extensIOn of her leave The "work related stress" claim was not a JustIfiable reason for her absence thereafter It dId not matter whether the letters were receIved once the gnevor had been absent for ten busmess days, the employer was entItled to termmate her employment pursuant to ArtIcle 13 05 [31] The unIon's representatIve argued that It was cntIcal that the gnevor dId not receIve the letters, partIcularly when the employer knew that It could reach her by cell phone and that she was not at the address to whIch the letters had been sent He submItted, m effect, that once the gnevor had made a sIck claIm as he argued she had on December 13th, artIcle 13 05 no longer applIed. As the employer had not made an effectIve request for better support for the gnevor's sIck claIm It had been oblIged to treat It as genume He submItted that she should be remstated wIthout loss of senIonty or benefits and wIth compensatIOn for lost sIck payor wages from December 13, 2004 12 or, alternately, February 9, 2005 He acknowledged employer counsel's argument that It was open to me to substItute a lesser penalty If I found that dIscharge was exceSSIve [32] Durmg argument the followmg awards were cIted Kawneer Co Canada v InternatiOnal Assn. of Bridge, Structural, Ornal11ental and Relllforclllg Ironworkers, Local 835 (FoIl Grievance), [2001] 0 L.A.A. No 212 (Harns), Clty of Toronto v Canadlan Ulllon of Publlc El11ployees, Local 79 (Tachle Grievance) [1999] 0 L.A.A. No 550 (Bendel), Re Nelsons Laundries Ltd. and Retail Wholesale Ulllon, Local 580 (1997), 64 L.A.C (4th) 120 (SomJen), Re NatiOnal Grocers Co Ltd. and Teal11sters Ulllon, Local 419 (1983) 11 L.A.C (3d) 193 (LangIlle), Cara OperatiOns and AlIPOrt Servlces v Teal11sters, Local 647 (Fisher Grievance) [2001] 0 L.A.A. No 673 (Abramsky), Jal11es Bay General Hospltal v Pubhc Sernce AUhance of Canada (Loone Grievance) LAX/2005 184 (Devlm), Canadlan Ulllon of Publlc El11ployees, Local 1860 v Newfoundland and Labrador HouSlllg COIp (Whlte Grievance) LAX/2005 375 (Browne) and AIgol11a Steel Inc. v Ulllted Steelworkers of Al11erica, Local 2251 (Bovlllgton Grievance) LAX/2005 602 (Rose) These cases are factually dlstmgUIshable, and apart from observatIOns later about the Clty of Toronto case, I do not find It necessary to revIew them m thIS a ward [33] My analysIs begms wIth the observatIOn that employees sometImes use the terms "stress" and "stress leave" rather loosely Most Jobs mvolve stress, some more than others Stress sometImes leads to Illness Illness sometImes prevents performance of work. Treatment of Illness sometImes reqUIres that the patIent be separated from certam sources of stress Some people speak of wantmg a "stress leave" even though they are not serIOusly III or unable to perform theIr Job, when separatIOn from the ordmary stressors of theIr employment IS Just a preference rather than a medIcal reqUIrement The dIfference between the context m whIch the gnevor conversed wIth Ms Falby about an extended leave and the context m whIch Ms Falby was later asked about those conversatIOns may explam why the gnevor thought she had spoken to Ms Falby m terms of a "stress leave" and Ms Falby thought she had not [34] It IS clear that as her extended vacatIOn was commg to an end the gnevor had a strong preference not to return to work. ThIs preference was based, as employer counsel conceded, on her feelmgs of anxIety and subJectIve perceptIOns of the Impact on her of 13 returnIng to the workplace It IS not apparent whether she regarded leave as a medIcal necessIty or a preference, nor even that she consIdered the matter m those terms She seems not to have thought It would be a partIcular problem for the employer to extend her leave If that was what she wanted ThIs was, as the UnIon argued, "naive" [35] On December 13, 2005, the gnevor told Ms DOIron that she wanted to extend her leave by reason of workplace stress, and that a doctor's letter was on ItS way m support of thIS request At that pomt the employer qUIte properly deferred a response to her absence wIthout leave untIl It saw the doctor's letter and could consIder the possibIlIty that thIS was an expressIOn of real medIcal need, not Just a renewed expreSSIOn of the gnevor's preference for a longer leave [36] The doctor's note of December 13th descnbed the gnevor as suffermg from ongomg anxIety and depressIOn. ThIs was not mconslstent wIth Ms Falby's observatIOns The note smd nothmg, however, about the seventy of the anxIety and depressIOn. It expressed no opmIOn that the gnevor was unable to perform the dutIes of her Job or that a return to work would be mJunous to her health. It dId not say that there were obJectIve medIcal reasons why further leave was necessary It only recorded and repeated what the gnevor was askmg for [37] The Immediate reactIOn of Ms DOIron and her manager was that the doctor's note would have to be assessed by others at the WSIB, but m the meantIme they should get the detaIls on a Form 7 If the gnevor was allegmg workplace stress ThIs was entIrely reasonable Its result, however, was that the telephone conversatIOn of December 16 was only focused on that task, a focus that led the gnevor to thmk her request was bemg taken serIOusly One thmg IS clear At the end of that conversatIOn Ms DOIron told the gnevor that they would be gettmg back to the gnevor, eIther many event or If they had questIOns It was reasonable for the gnevor to conclude that they would get back to her by cell phone, and that they would do so If there was any dIfficulty wIth her request for extended leave [38] The employer was entItled to take the posItIOn that It would only extend the gnevor's leave If that was medIcally necessary It was entIrely reasonable for It to conclude that the doctor's note dId not allege medIcal necessIty It was entIrely reasonable, then, for It to advIse the gnevor that If she could not provIde better medIcal 14 JustIficatIOn she would have to return to work, and to gIve her a new deadlme for domg so The employer's dIfficulty here IS that It dId not actually commumcate that to her It wrote letters addressed to her It sent them by "regIstered mall." When the partIes agreed that the letters had been sent by "regIstered mail," they seem to have used that phrase m a genenc rather than a techmcal sense, smce the second letter was sent by Purolator couner and It IS not clear whether the first was sent by RegIstered Mall or ExpressPost In any event, the charactenstIc that dlstmgUIshes regular mail from "regIstered mall" IS that the latter process results m proof of delIvery, when delIvery IS successful. The use of "regIstered mall" underscores the Importance of ensurmg that the message be receIved. Here, It was not. ThIS IS not, as the employer argues, a neutral fact [39] No further or better medIcal eVIdence was put before me I must conclude that there was no obJectIve medIcal JustIficatIOn for the gnevor's absence [40] In the gnevance meetmg of Apn129, 2005, the JustIficatIOn that the gnevor gave for her faIlure to respond to the letters and her absence beyond the December 16th was that she had not receIved the letters and had been waltmg Ms DOIron to get back to her On the eVIdence before me about how the telephone conversatIOn of December 16th ended, I find that that was reasonable for the gnevor to expect that the employer would get back to her after December 16th concermng when she should return to work. ThIs IS underscored by the fact that the employer dId address that Issue m ItS letters of December 20th and January 4th and It decIded to send them by means that would generate proof of receIpt In all the cIrcumstances, I am satIsfied that her expectatIOn that the employer would be gettmg back to her about her request for leave was a "JustIfiable reason" for her absence after December 16th. It remamed so untIl January 31, 2005, when she actually receIved the employer's letters Accordmgly, ArtIcle 1305 dId not JustIfy termmatIOn of her employment on January 11, 2005 [41] A prudent employee would not have waIted SIX weeks to follow up when she dId not hear from the employer A prudent employer would not have relIed solely on mall sent to an address at whIch It knew the gnevor was not then resldmg, when It had a cell phone number at whIch It had every reason to expect It could contact her promptly, partIcularly after havmg faIled to secure proof of delIvery of ItS letters through the 15 "regIstered mall" process that It chose to adopt mstead. There were fall ures of commumcatIOn on both sIdes The gnevor's were not cause for dIscharge [42] It follows that the gnevor should be remstated wIthout loss of semonty or benefits [43] As for compensatIOn for lost wages, I do not accept the umon's argument that the gnevor should receIve sIck pay for any part of the penod m Issue There IS no obJectIve eVIdence before me that she was ever so III as to be unable to work. [44] I cannot Ignore the fact that untIl early Apnl 2005 the gnevor's absence from work comclded wIth a perIOd for whIch she had sought an extensIOn of her unpaId leave That request was never expressly wIthdrawn. It IS not apparent from her eVIdence that her desIre to remam on leave was undlmlmshed on February 9th, when she called Ms DOIron to say that she was askmg for her Job back because the umon had advIsed her to do so WhIle the employer was under no obhgatIOn to grant the request for leave untIl early Apnl, I am not prepared on these facts to grant compensatIOn wIth respect to thIS perIOd I am Just not persuaded that thIS unpaId absence from work was any loss for the gnevor Her record may reflect that she was on unpmd leave untIl Apnl4, 2005 [45] The employer argued that If I decIded that termmatIOn was not JustIfied I should follow the example of ArbItrator Bendel m the City of Toronto v Canadian Ulllon of Public El11ployees, Local 79 (Tachie Gnevance), supra, and deny the gnevor compensatIOn altogether WhIle there are some sImIlantIes between that case and thIS one, there are also sIgmficant dIfferences Perhaps the most sIgmficant dIfference IS that the gnevor there had not provIded the employer wIth any means of contactmg her dIrectly, and the decIsIOn to termmate there was ultImately based on the fact that she dId sImply not keep m touch. ArbItrator Bendel explamed hIS demal of compensatIOn thIS way ,-r51 The gnevor was to a large extent responsIble for the termmatIOn and, whIle dIscharge was not m my VIew fully warranted, It would be wrong to Impose on the employer whIch (hd not act unreasonably m thIs matter the financIal burden of compensatmg her for any lost wages I am not satIsfied that responsiblhty for the outcome IS as one sIded m thIS case 16 [46] All of the mformatIOn on whIch I have concluded that the gnevor should be remstated was known to the employer no later than the gnevance meetmg of Apnl 28, 2005 The employer knew that the gnevor had not receIved Its letters before It decIded to termmate her for her faIlure to respond to them. It had heard the gnevor's explanatIOn that she had been waltmg to hear back from Ms DOIron. There was not then and IS not now any reasonable JustIficatIOn for her havmg waited from December 9 to December 13 to contact the employer, nor was there any medIcal JustIficatIOn for the faIlure to return to work on December 13th. Those were serIOUS breaches by the gnevor of her oblIgatIOns to her employer Although artIcle 13 05 dId not apply, It would not been unreasonable of the employer to Impose a substantIal suspenSIOn for those reasons GIven the low value that the gnevor seemed to place on her Job, It would not have been unreasonable for the employer to add a one month suspenSIOn to the unpaid penod of leave she had requested m December, and return her to work on May 2, 2005 [47] I am not persuaded that there IS any prmclpled reason to deny the gnevor compensatIOn for any loss of wages she may have suffered m the perIOd smce May 2, 2005 Although I am sure thIS wIll be explamed to her by the UnIon, It IS Important for the gnevor to understand that she wIll not recover any wage loss for any penod between May 2nd and her remstatement If she faIled to take steps to mItIgate that loss by takmg actIve and reasonable steps to secure other employment durmg that penod. [48] For these reasons I dIrect that the gnevor be remstated forthwIth wIthout loss of senIonty or benefits, but wIthout compensatIOn for the penod up to May 1, 2005 Her record IS to be amended to remove reference to the termmatIOn of her employment on January 11, 2005 The employer may substItute a dlsclplmary suspenSIOn wIthout pay for one month endmg May 1, 2005, for the gnevor's failure m December 2004 to advIse the employer m advance that she would be absent from work and for bemg absent from work wIthout leave The employer IS to pay the gnevor compensatIOn for any loss of wages that she may be able to prove she suffered m the penod from May 2, 2005 to the date on whIch the employer returns her (or offers to return her) to work. I remam seIsed wIth any Issue that the partIes are unable to settle concernIng the ImplementatIOn of thIS award 17 Dated at Toronto thIS 19th day of December 2005 V